lessons from the alternative dispute resolution movement

Lessons from the Alternative DisputeResolution Movement

Jethro K. Liebermant & James F. Henrytt

In less than a decade, alternative dispute resolu-tion-ADR-has grown from a bravely-voiced hope to a congeriesof practices animated by the desire to resolve legal battles outsidethe courtroom.1 ADR offers a way-station, or a series of them, be-tween the probity of the adversary system and the flexibility ofprivate negotiations. 2 Though not without an ideology, ADR hasnever had a unified theory to explain what it accomplishes andhow it works. But enough experience has accumulated by now topermit a search for a more analytical understanding of ADR andthe lessons it might teach.

I. WHAT IS ADR?

The ADR roster includes such well-known processes as arbi-tration, mediation, conciliation, and, perhaps, negotiation. Theseprocesses can be used to settle existing disputes or to prevent dis-putes from developing.3 There are also new hybrid devices thatborrow from courtroom procedure-including, most prominently,the mini-trial.4 The roster may also be expanded to include the

tVisiting Associate Professor, New York Law School.ttPresident, Center for Public Resources, New York.

1 Groups advocating ADR include the Legal Program of the Center for Public Re-sources (including its Judicial Panel), the American Arbitration Association, the SpecialCommittee on Dispute Resolution of the American Bar Association, the Alternative DisputeResolution Section of the Association of American Law Schools, the Society of ProfessionalsIn Dispute Resolution (known as SPIDR), and certain for-profit companies, for example,EnDispute, Inc.

2 Cf. Fuller, The Forms and Limits of Adjudication, 92 HARv. L. REv. 353, 363-64(1978) (discussing contract and adjudication as forms of social ordering involving differentmodes of participation by affected parties); id. at 406-07 (discussing "mixed" forms).

3 See THE ROLE OF COURTS IN AMimcN Socmty 94-97 (J. Lieberman ed. 1984) [here-inafter cited as THE RoLE OF COURTS].

4 See, e.g., ERiKA S. FINE, THE CPR LEGAL PEOGRAM MN-TRAL WORKBOOK (1985); J.HENRY & J. LBERmA, THE MANAGER'S GUIDE TO RESOLVING LEGAL DispuTEs chs. 3-6(1985); Green, Growth of the Mini-Trial, LIGATION, Fall 1982, at 12; Parker & Radoff, TheMini-Hearing: An Alternative to Protracted Litigation of Factually Complex Disputes, 38Bus. LAW. 35 (1982).

Lessons from ADR

roles played by certain officials and quasi-officials5 (such as court-appointed masters, special masters,6 and neutral experts), by pri-vate persons retained as neutrals,7 by ombudsmen,8 and by privatejudges.9 Changes in procedural rules to provide incentives to theparties to settle (for example, further penalizing parties who turndown reasonable settlement offers1") and the greater use of partialsummary judgment 1 might also be viewed as ADR techniques.

It is easier to point to discrete practices than to discern theentire direction of the new movement. ADR has no generally ac-cepted abstract or theoretical definition. But it does have a funda-mental premise: it is worthwhile both to reduce the costs of resolv-ing disputes, however this can be accomplished, and to improvethe quality of the final outcome. We offer a working definition ofADR 12 as a starting point for analysis: ADR is a set of practices

5 See, e.g., Green, Getting Out of Court-Private Dispute Resolution, BOSTON B.J.,May/June 1984, at 18; Alabama Inaugurates Court Expert Plan, ALTERNATwES TO THEHIGH COST OF LITIGATION, Aug. 1982, at 5.

' See, e.g., W. BRAZIL, G. HAZARD & P. RICE, MANAGING COMPLEX LITIGATION: A PRACTI-

CAL GUIDE TO THE USE OF SPECIAL MASTERS (1983); Brazil, Referring Discovery Tasks toSpecial Masters: Is Rule 53 a Source of Authority and Restrictions?, 1983 Ah. B. FOUND.

RESEARCH J. 143.7 See, e.g., W. WARREN KNIGHT, JUSTICE OUTSIDE THE SYSTEM 6, 9, 35 (Premier Publish-

ing Co. 1984); Feinberg Mediates Private Antitrust Suit, ALTERNATIVES TO THE HIGH COST

OF LITIGATION, July 1985, at 1; Morris, The Mini-Trial from the Perspective of a NeutralAdvisor, CPR LEGAL PROGRAM PROCEEDINGS, June 1983, at 21.

8 See, e.g., WALTER GELLHORN, WHEN AMERICANS COMPLAIN 39-56 (1966); Robbins &

Deane, A Non-Adversary Solution for Employee Conflicts, ALTERNATIVES TO THE HIGH COST

OF LITIGATION, Aug. 1985, at 6; Rowe, The Non-Union Complaint System at M.LT.: AnUpward-Feedback, Mediation Model, ALTERNATIVES TO THE HIGH COST OF LITIGATION, April1984, at 10; Rowe, The Non-Union Complaint system at MIT, in Proceedings of the FirstNational Conference on Resolving EEO Disputes without Litigation, Washington, D.C., Jan.1984, at 24, 38; American Optical Co., Ombudsman Program, in id. at 76 (on file with TheUniversity of Chicago Law Review).

' See, e.g., Green, Avoiding the Legal Logjam: Private Justice, California Style, inCENTER FOR PUBLIC RESOURCES, CORPORATE DISPUTE MANAGEMENT 1982, at 65-89; Green,Private Judging: A New Variation of Alternative Dispute Resolution, TRIAL, Oct. 1985, at36.

10 See Note, Rule 68: An Offer You Can't Afford to Refuse, 37 RUTGERS L. REV. 373(1985) (suggesting alteration of rule 68 to allow either party to invoke the rule, to limitjudicial discretion in determining the reasonableness of an offer, and to allow adequate dis-covery before offers); Note, Rule 68: A "New" Tool for Litigation, 1978 DUKE L.J. 889 (sug-gesting increased judicial discretion in the rule 68 cost-shifting provision).

1 For an analysis and critique of current summary judgment practice in the federalcourts, see Schwarzer, Summary Judgment Under the Federal Rules: Defining GenuineIssues of Material Fact, 99 F.R.D. 465 (1984).

"' This definition is distinctly different from that implied by one of the leading criticsof ADR, Professor Owen M. Fiss-namely, that ADR is the creation of incentives or pres-sures that force litigants to settle. See Fiss, Out of Eden, 94 YALE L.J. 1669, 1670 (1985). Fora response to Fiss's critique of ADR, see infra text accompanying notes 39-47.

The University of Chicago Law Review

and techniques that aim (1) to permit legal disputes to be resolvedoutside the courts for the benefit of all disputants; (2) to reducethe cost of conventional litigation and the delays to which it is or-dinarily subject;13 or (3) to prevent legal disputes that would other-wise likely be brought to the courts.14

This paper focuses on the first part of the definition-privateresolution of existing legal disputes outside the courts. 15 The "dis-putes" with which ADR is centrally concerned should be distin-guished from "problems," "grievances," or "claims."' 6 Problemsare the troubles that affect the human lot, such as damage fromstorms or sudden illness. Grievances are those problems that affecta particular person, but which may or may not have a particularperson or group as the cause of the distress. When the sufferer asksthe person thought to be causing the grievance to forbear, thegrievance has become a claim or complaint. But a dispute arisesonly when the one against whom the complaint is lodged fails torespond satisfactorily to the aggrieved party. And a "legal" disputearises only when the claim is grounded in a legal entitlement.ADR, then, should be viewed as a set of practices that are trulyalternatives to the courts for the resolution of disputes that couldlegitimately be disposed of by judicial decree.

Finally, ADR can be "alternative" in one of two senses: be-cause the parties privately choose to avoid litigation (or to termi-nate it short of judgment), or because legal rules require or permitthe courts to send the dispute elsewhere (as in court-annexed arbi-tration). The analysis that follows largely takes the perspective ofparties who have privately and voluntarily chosen to resolve their

13 Speed should not be seen as the sine qua non of a non-adjudicative process. SomeADR processes take longer than traditional adjudication-for example, the joint review pro-cess. See Conference Proceedings, Rocky Mountain Mineral Law Foundation, Denver, Colo-rado, March 22-23, 1984.

14 This third part of the definition is responsive to public debate over the nature andgrowth of litigiousness in the United States. See JETHRO LmEBEmAN, THE LMGIOUS SociTY(1981); Galanter, Reading the Landscape of Disputes: What We Know and Don't Know(and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLAL. REv. 4 (1983).

15 Nevertheless, it is well to remember that if the aim is to reduce the incidence oflitigation in the United States and its attendant costs, it is highly relevant to find ways toprevent disputes from arising and to minimize the cost of litigating those disputes that mustgo to court.

16 This distinction is developed in Felstiner, Abel & Sarat, The Emergence and Trans-formation of Disputes: Naming, Blaming, Claiming .... 15 LAW. & Soc'Y REv. 631 (1981);see also THE ROLE OF CouRTs, supra note 3, at 86-87; Miller & Sarat, Grievances, Claims,and Disputes: Assessing the Adversary Culture, 15 LAW & Soc'Y REV. 525 (1981).

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disputes outside the formal procedures of adjudication.17

II. THE THEORY. BEHIND ADR

A. Opening the Lines of Communication

What often prevents disputes from being resolved is a failureto communicate stemming from a lack of trust between the parties.ADR is premised on the hypothesis that if the parties could over-come this distrust, they could voluntarily reach a settlement asjust as the result a court would impose.

The adversary process-the engine of the adjudicatory sys-tem-operates on a theory of fundamental distrust: Never putfaith in the adversary. Litigation thus becomes formal, tricky, divi-sive, time-consuming, and distorting. These characteristics are re-flected in the common image of discovery in large-scale commercialcases that takes years to conduct, in the careful coaching and prep-aration of witnesses, and in the skillful impeachment of sound wit-nesses during cross-examination.' In contrast, the creation of trustis central to the design of many ADR processes.

Consider the example of the mini-trial. The mini-trial is not infact a trial at all, but a highly-structured settlement process. Be-cause it is a flexible device that can be tailored to the precise needsof the parties, no single procedural model of the mini-trial has yetprevailed. But in general, the known mini-trials share many of thefollowing characteristics: 19

1. The parties negotiate a set of procedural ground rules (aprotocol) that will govern the nonbinding mini-trial.

2. The time for preparation is relatively short-between sixweeks and three months-and the amount of discovery is relativelylimited.

3. The hearing itself is sharply abbreviated-usually no more

17 The narrow focus of this paper should not be taken to mean that the movementamong judges to explore alternatives to traditional procedures is not central to ADR. Infact, the ADR movement perhaps had its modern beginnings at the Pound Conference, atwhich Professor Frank E.A. Sander introduced the concept of the "multi-door court-house"-that courts could use different processes to resolve disputes in different "rooms."Sander, Varieties of Dispute Processing, 70 F.R.D. 111, 126-34 (1976). This paper suggests,however, that the perspective of private parties voluntarily choosing among available proce-dures should form the baseline of any evaluation of the judicial adaptation of ADRtechniques.

Is For critiques of the adversarial system, see MARVnN FRANKEL, PARTISAN JUSTICE 3-69(1981), and ANNE STRIcK, INJUSTICE FOR ALL 37-57 (1977).

19 These characteristics are discussed in some detail in J. HENRY & J. LIEBERMAN, supranote 4, at 26-35.

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than two days.4. The hearing is often conducted by a third-party neutral,

typically called the "neutral advisor."5. The case is presented to representatives of the parties with

authority to settle; there is no judge or jury.6. The lawyers present their "best" case; they do not have

time to delve into side issues.7. Immediately after the hearing, the party representatives

meet privately to negotiate a settlement.8. If they cannot reach a settlement, the neutral advisor may

render an advisory opinion on how he thinks a judge would rule ifthe case were to go to court.

9. The proceedings are confidential: the parties generallycommit themselves to refrain from disclosing details of the pro-ceedings to any outsider.

Several observations are in order about the trust-building ca-pacity of the mini-trial. First, the very process of negotiating theprotocol tends to foster trust.2 0 Second, by concentrating on theirbest possible case, the lawyers usually feel constrained to discussthe central issues. Third, the kind of lawyerly hairsplitting, name-calling, and pettifogging that might delight courtroom regularswould leave the business executives to whom mini-trials arepresented singularly unamused. Finally, the presence at the hear-ing of a neutral advisor, to whom both parties have consented, en-hances the prospect that they will credit any advisory opinion thathe renders.

Mediation leads to the building of trust in a somewhat differ-ent way. Mediation permits a neutral to learn intimate facts fromboth sides that they would never have shared with each other inthe course of trial preparation. By building on the parties' trust inthe mediator, the process thus allows the parties to explore worka-ble options. With the knowledge that he gains, the mediator canlearn how far apart the parties are and devise ways of bridging thegap.

One lesson that ADR teaches, then, is that processes designedto restore and build trust can overcome the suspicion and mutualhostility fostered by the adversary system and can lead the parties

20 It might be objected that this prospect is circular: only if the parties trust each other

at least to a limited extent will they agree to conduct a mini-trial at all. But experiencesuggests that they need not trust each other very much at the outset. Their need to negoti-ate in order to gain access to the forum tends to foster trust, and their desire to save furtherlitigation costs might simply overwhelm the distrust.

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to settle their differences. When the substantive outcome is com-pared to the likely result in court-and the costs of continued liti-gation are weighed in the balance-both parties generally benefitfrom ADR.

B. The Superiority of Results

A working hypothesis of ADR is that the results of ADR areoften superior to court judgments-and even more clearly superiorto conventional settlements. Although the hypothesis is difficult totest, it is supported by several considerations.

First, adjudication is characterized by a "winner-take-all" out-come. 21 This cannot be wholly true, for jury damage awards canwork compromises, and the parties can shape consent decreesthrough bargaining. Nevertheless, in many cases, the fundamentalissue of liability can be resolved only by holding for the plaintiff orthe defendant. ADR, by contrast, is not bound by the zero-sumgame of adjudication. While we have defined ADR as concernedwith "legal disputes," participants in ADR are free to go beyondthe legal definition of the scope of their dispute. They can searchfor creative solutions to the problem that gave rise to the dispute,and those solutions may be far more novel than any remedy acourt has the power to provide. In a mini-trial held by Texaco andBorden, for example, the parties resolved a breach-of-contractclaim and antitrust counterclaim totaling in the hundreds of mil-lions of dollars by renegotiating the entire contract for the supplyof natural gas. Both parties claimed a net gain.22 No court couldhave ordered the parties to renegotiate; at best a judge or jurycould only have compromised on the amount of damages itawarded the "winner."

Second, in classes of cases involving complex institutions, ne-gotiations conducted by executives are likely to yield results supe-rior to those conducted by the lawyers.2 3 The executives are far

,1 See HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION 33-35 (1982); Menkel-

Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving,31 UCLA L. REv. 754, 783-89 (1984).

'2 See Texaco-Borden Antitrust Mini-Trial Sets Record, ALTERNATrES TO THE HIGHCOST OF LGATION, March 1983, at 1, 3.

23 Such is the common claim in gatherings of ADR proponents, although it is difficultto document. In remarks at the midyear meeting of the CPR Legal Program, ProfessorJames Sebenius of the Kennedy School of Government suggested that managers negotiatebetter than lawyers because they can invent options that go beyond the narrow focus of theissues in dispute. The best negotiation, he suggested, occurs when managers are teamed withlawyers. Management Roundtable: Roles of Senior Executives in Preventing, Managing,

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more familiar than their lawyers with the nuances of their businessand can respond more quickly and creatively to proposals raised bytheir counterparts. We do not mean to diminish the role or respon-sibilities of lawyers in the negotiations; their legal knowledge willoften be crucial to successful settlements and good lawyer-negotia-tors may be more skillful than poorly trained executive-negotia-tors. Nevertheless, the business executive may be presumed to beless distracted by the shadow the law casts over the dispute;24 theexecutive will look at the complete business picture, unconstrainedby the narrow parameters imposed by legal doctrine.25

Third, direct involvement by the client can obviate or mini-mize difficulties arising from the self-interest of lawyers. This pointmay be particularly instructive for judges. By requiring clients toattend pretrial conferences, judges can be sure that the clientsknow and approve of the propositions their lawyers will assert incourt on their behalf.26

Fourth, ADR techniques and processes can be far more sys-tematic than the horsetrading of conventional settlement negotia-tions. Settlement negotiations are often perceived as consisting ofsharp tactics and bluff. 27 "Unprincipled" negotiations occur inlarge part because the parties lack a means of communicating witheach other. ADR processes permit realistic assessments of whetheroffers and counteroffers are in good faith.

Fifth, properly designed ADR processes make it more likelythat settlement decisions will be based on the merits of disputes.As Richard A. Posner has suggested, various factors may contrib-ute to more or less settlement.28 Delay in the judicial system tendsto "increase[] the likelihood of settlement by reducing the stakesin the case," in part because delay diminishes the present value ofthe ultimate award.29 Other factors include rules governing pre-judgment interest and the availability of pretrial discovery.30 This

and Resolving Disputes, CPR LEGAL PROGRAM PROCEEDINGS, Feb. 1985, at 28.2 Cooter, Marks & Mnookin, Bargaining in the Shadow of the Law: A Testable Model

of Strategic Behavior, 11 J. LEGAL STuD. 225 (1982).2' See generally Menkel-Meadow, supra note 21 (contrasting adversarial and problem-

solving modes of negotiation).28 See Federal Judges Urge CEOs to Come to Chambers Early, ALTERNATriES TO THE

HIGH COST OF LMGATION, Jan. 1983, at 5 [hereinafter cited as CEOs].27 For a contrary view, see R. FISHER & W. URY, GEriNG TO YES (1981).28 See Posner, An Economic Approach to Legal Procedure and Judicial Administra-

tion, 2 J. LEGAL STUD. 399, 417-29 (1973).29 Id. at 420 (under certain assumptions).30 Id. at 421-27. Not all discovery provisions facilitate settlement according to this

model. See id. at 426-27 (discussing insurance-coverage and medical-examination rules).

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analysis could lead the courts to advocate policies that would in-crease delay (or other costs of litigation) in order to prompt settle-ment. The resulting settlements would not necessarily be just,however, because they would not have taken account of power dis-parities. The party with the more meritorious claim might not pre-vail because he is too poor to amass the requisite evidence throughthe discovery process. Society may have the power to foster highersettlement rates by manipulating the factors that induce people tostay out of court, but many proponents of ADR would not viewsuch policies as consonant with the ADR philosophy. A disputeshould not merely be settled; it should be settled justly.

As a simple example of this difficulty, the divorce mediationmodel has lately come under attack from feminists and others pre-cisely because in that model-where husband and wife are in aroom with a mediator attempting to resolve their financial affairsand custody arrangements-neither participant has an attorney,and the spouse with superior knowledge and staying power will beable to force a better and possibly unjust settlement.31 Responsibleproponents of ADR do not advocate settlement at any cost. TheADR processes now being implemented are designed to reflect thedual notion that settlements should be both just and efficient.

Finally, a sixth reason to think that ADR leads to "better"outcomes is that the use of private neutrals permits the parties tosubmit their dispute to one with greater expertise in their particu-lar subject than does the luck of the draw in the courtroom. Manycomplex disputes involve data and concepts that lie beyond theknowledge of generalist judges (and of all juries). The ADR neutralcan be selected for a particular expertise, thus saving the partiesthe cost of educating the fact-finder (and the risk of failing to doso). Moreover, if the parties have personally participated in select-ing the neutral, they may be psychologically disposed to accept hisstatement of the case, whether it is a binding decision (as in arbi-tration) or an advisory opinion (as in a mini-trial).

.. Compare Herman, McKenry & Weber, Mediation and Arbitration Applied to Fam-

ily Conflict Resolution, 34 ARB. J. 17, 19 (1979) ("successful negotiation of the settlementagreement includes equalization of power"), with Kressel, Deutsch, Joffe, Tuchman & Wat-son, Mediated Negotiations in Divorce and Labor Disputes: A Comparison, 15 CONCmIA-TON COURTS REV. 9, 11-12 (1977) (since power disparities create "strong pressures on themediator" to side with the wife and threaten the mediator's impartiality, each side shouldbe provided with an advocate).

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III. Is ADR SOCIALLY VALUABLE? A RESPONSE TO THE CRITICS

Proponents of ADR suggest that its value lies in reducing theburden on courts and disputants. Alarmed at the ever-increasingnumbers of cases filed, 2 the Chief Justice33 and others3 4 see arbi-tration and other practices as ways of removing large individualcases and even large classes of cases from the courts, thus remov-ing a burden from the shoulders of judges (while shifting it tosomeone else). To the delight of their critics, they have occasion-ally forgotten that whether this change is beneficial depends on therelative justice and expense of dispositions through formal in-courtadjudication and through less formal out-of-court methods of dis-pute resolution.

Critics of ADR, like Owen Fiss,3 5 suggest that ADR propo-nents mistake the function of courts as "mere" dispute resolvers.By diverting cases from courts, society loses the benefit of court-sanctioned judgments:

The advocates of ADR are led. . . to exalt the idea of settle-ment more generally because they view adjudication as a pro-cess to resolve disputes. They act as though courts arose toresolve quarrels between neighbors who had reached an im-passe and turned to a stranger for help. Courts are seen as aninstitutionalization of the stranger and adjudication is viewedas the process by which the stranger exercises power ....The dispute-resolution story makes settlement appear as aperfect substitute for judgment . . . by trivializing the reme-dial dimensions of a lawsuit, and also by reducing the social

31 Case filings, the common measure of litigation rates, are misleading because so many

filed cases are neither heard nor adjudicated in court. See THE ROLE OF COURTS, supra note3, at 29.

33 See, e.g., Burger, Isn't There a Better Way?, 68 A.B. J. 274, 276-77 (1982) (advo-cating private binding arbitration as "'a better way to do it' ").

U See, e.g., Derek Bok, The President's Report to the Board of Overseers of HarvardCollege, 1981-1982, reprinted in N.Y. ST. B.J., Oct. 1983, at 8, and N.Y. ST. B.J., Nov. 1983,at 31; Cannon, Contentious and Burdensome Litigation: A Need for Alternatives, 63 NAT'LFORUM, Fall 1983, at 10; Ehrlich, Legal Pollution, N.Y. TMEs MAO., Feb. 8, 1976, at 17, 21;Footlick, Too Much Law?, NEWSWEEK, Jan. 10, 1977, at 42, 47; Manning, Hyperlexis: OurNational Disease, 71 Nw. U.,. RE v. 767, 780 (1977); Rosenberg, Let's Everybody Litigate?,50 TE . L. REV. 1349, 1360-63 (1972); Tribe, Too Much Law, Too Little Justice, ATLANricMONTHLY, July 1979, at 25.

'5 We cite Fiss repeatedly here because he is the most articulate opponent of an ADRperspective; hence it is useful to test the propositions of ADR against his critique. We say"a" perspective because, as suggested in the text, Fiss tends to emphasize the perspective ofthe judge imposing an "alternative" procedure on unwilling litigants, rather than that of theconsumer of legal services making a rational choice among available options.

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function of the lawsuit to one of resolving private disputes: Inthat story, settlement appears to achieve exactly the samepurpose as judgment-peace between the parties-but at con-siderably less expense to society.36

Fiss also argues that advocates of ADR have an unstated polit-ical agenda: to keep the activist state from meddling with powerfulprivate economic interests.3 7 Finally, Fiss suggests that settlementslack the legitimacy of cases fully adjudicated to judgment."

Four responses to this critique are in order. One short answerto Fiss is that most ADR proponents make no claim for shuntingall, or even most, litigation into alternative forums. The ADRmovement of the 1980s does not suppose that every legal disputehas a non-judicial solution. Indeed, the ADR literature recognizesthat some types of cases are not suited to resolution outside thecourtroom, including particularly cases in which the plaintiff seeksa declaration of law by the court.3 9 Fiss overlooks this acceptedlimitation of ADR because he assumes, at least implicitly, that allcases resemble Brown v. Board of Education.40 But, of course, theydo not. It seems obvious that large classes of cases are.not so con-sequential, and do not call for the definitive ruling of a judge orthe imprimatur of an official organ of the state. Automobile acci-dents, uncontested divorces, breaches of contract, and other com-mon types of suits do not cry out to be memorialized in the officialreports, and, in any event, most are settled far short of trial.

3' Fiss, Against Settlement, 93 YALE L.J. 1073, 1075, 1085 (1984).

', "Chief Justice Burger is not moved by love, or by a desire to find new ways to re-store or preserve loving relationships, but rather by concerns of efficiency and politics. Heseeks alternatives to litigation in order to reduce the caseload of the judiciary or, even moreplausibly, to insulate the status quo from reform by the judiciary." Fiss, supra note 12, at1670.

" Fiss, supra note 36, at 1082 (rejecting the notion that settlement is legitimate be-cause it is consent-based; instead, settlements are approved based on an imagined result attrial, without the benefit of adversary presentation).

'3 In this sense, the current ADR movement has a different outlook from its precursors.Much of the energy of early reform movements was devoted to a search for a comprehensiveelimination of formal adjudication. See generally JEROLD AUERBACH, JUSTICE WrrHouT LAW?(1983) (contrasting early community-based modes of dispute settlement with the post-1960s"legalization" of these alternative modes). That is not the core of the modern argument.See, e.g., Civil Case Backlogs in Federal District Courts: Hearings Before the Subcomm. onCourts of the Senate Comm. on the Judiciary, 98th Cong., 1st & 2d Sess. 197 (1984) (state-ment of James F. Davis) ("If there are overriding legal principles in a dispute, constitutionalmatters, statutory construction matters, grudge cases, and the like, a minitrial probably isnot going to succeed.").

40 347 U.S. 483 (1954); see Fiss, supra note 12, at 1670 ("It would be nice if the blacksin Chicago. . . did not have to go to court in order to obtain all the Constitution promises,and instead were able to work things out with the school board.").

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A second response to Fiss's critique is that his "conspiracytheory" of ADR is dubious. Many people who seek to use ADR arescarcely "powerful" economic interests-ADR is not limited toadoption by Fortune 500 companies. Moreover, ADR does not dis-pense with community norms. All dispute resolution takes placewith an eye toward existing alternatives-including litigation.41 Fi-nally, the choice to employ ADR is made by parties who have de-termined that the injustice resulting from delay and the prohibi-tive costs of pursuing a case through the courts (directexpenditures for lawyers and expenses, as well as significant indi-rect expenditures, like lost opportunity costs) far outweigh any pu-tative injustice stemming from the decision to forgo judgment bythe court.

A third response to Fiss is that not all questions need to beanswered. An open society needs the tension of open questions;parties who settle do not thereby foreclose answers at some latertime when matters of principle are truly at stake and the issuescannot be compromised. Fiss agrees that avoidance has a value tosociety, "which sometimes thrives by masking its basic contradic-tions. ' 42 He questions, however, whether settlement will result intoo much avoidance.4 But we know of no way to measure the ap-propriateness of avoidance. Furthermore, Fiss's concern is one-sided. We should be equally concerned to prevent courts from ren-dering judgment when settlement is more appropriate.

Finally, Fiss's position is seriously weakened by his failure tooffer proof that court judgments are more just. He says, for exam-ple, that "[a] djudication is more likely to do justice than conversa-tion, mediation, arbitration, settlement, rent-a-judge, mini-trials,community moots or any other contrivance of ADR, precisely be-cause it vests the power of the state in officials who act as trusteesfor the public, who are highly visible, and who are committed toreason."

44

Does ADR reach a just result or merely an expedient one?How can one measure the justice of a private settlement? Thequestion is important, but it has not been well discussed in theADR literature-no doubt because it is so difficult a proposition totest. Whatever the answer, it seems fair to ask the same questions

41 See supra note 23 and accompanying text; Mnookin & Kornhauser, Bargaining in

the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979).42 Fiss, supra note 36, at 1086.

43 Id.44 Fiss, supra note 12, at 1673.

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of courts. In theory, courts are committed to reason, but in prac-tice much stands in their way. Some judges are dispassionate anddisinterested seekers after justice, but not all are. And all judgesare busy; it is a fair assumption that they do not have sufficienttime to devote to any single case.45 Moreover, the maneuvering ofpartisan lawyers alone is often enough to ensure that justice willnot be done.46

A perhaps more controversial response to Fiss's argumentabout the quality of outcomes is that in certain important classesof cases-cases involving public institutions like schools, hospitals,and prisons (the very cases that particularly interest Fiss)-courtsthemselves invoke processes that are firmly lodged in the ADR ar-senal. Stories that describe litigation over unconstitutional prisonconditions, inhumane mental hospital conditions, and segregatedschools frequently depict the judge acting as mediator, helping theparties to negotiate the remedy the court will impose by consentdecree.47 If the courts themselves find these processes useful oreven necessary, chances are good that the same processes can be asbeneficial when invoked outside the courts.

IV. APPLICATIONS FOR JUDGES

It is in an important sense anomalous to suppose that judgescan discern in the private ADR movement any practical applica-tions for use within the courts, since the very premise of ADR isthat it is a consensual process designed to circumvent judicial pro-cess. If the parties are before the court, they are presumably therebecause they seek adjudicatory procedures to resolve their disputeor because they could not agree on private procedures to do so. Ineither event, judges may not impose procedures outside the scopeof the rules. Nevertheless, the modest success of ADR so far sug-gests two possibilities, one more difficult than the other.

One possibility lies in changing the rules themselves. Proce-

4 For a general discussion of the problem of delay, see THE COURTS, THE PUBLIC, ANDTHE LAW EXPLOSION 31 (H. Jones ed. 1964) ("[A] lot more is said about court delay than isknown about it. But how thick a supporting dossier need one collect to take a stand againstsin? And that is what, by common repute, delay is-an unmitigated evil.").

46 See M. FRANKEL, supra note 18, at 21-38.47 See, e.g., Chayes, The Ordinary and the Extraordinary in Institutional Litigation,

93 H~Av. L. REv. 465, 481-86 (1980) (increase in judicial participation as litigation complexi-ties increase); Eisenberg & Yeazell, The Role of the Judge in Public Law Litigation, 89HARv. L. REv. 1281, 1296-1302 (1976) (same); see also MARTIN SHAPmO, COURTS 8-9 (1981)("Mediating is not to be seen as an antithesis to judging, but rather as a component injudging.").

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dures too cumbersome could be made more flexible; procedures toounlikely to be invoked could be made more accessible. The objecthere is not to design procedures that will keep cases from comingto court, not to aid judges with overfull calendars. Rather, thecourts could, by local rule or legislative action when necessary,streamline processes that are underused.

Thus two ADR advocates have recently proposed streamliningthe Federal Rules of Civil Procedure to permit cases to go forwardalong a "fast track. 48 They propose that the parties be permittedto elect an expedited schedule of discovery that would guarantee atrial date within 12 months.

Another type of ADR within the courts is the summary jurytrial. The brainchild of U.S. District Judge Thomas D. Lambros(N.D. Ohio), the summary jury trial is the courtroom equivalent ofthe mini-trial. A case is presented during the course of a single dayto a mock jury consisting of jurors drawn from the real jury pool;the jurors do not know until after they have rendered their verdictthat it is not binding. In thus giving the parties a "real" verdict,the procedure creates an incentive for them to settle their case pri-vately. The record to date suggests a high settlement rate (morethan ninety percent in Judge Lambros's courtroom).49 The sum-mary jury trial has been adopted in a number of federal courts,either by local rule50 or by individual judges,51 and has been for-mally endorsed by the Judicial Conference of the United States.52

Even with rules changes, these devices require the consent ofthe parties, and so in that sense can be considered ADR mecha-nisms. 53 Consent is central to the other possible approach to using

'8 See McMillan & Siegel, Creating a Fast-Track Alternative Under the Federal Rules

of Civil Procedure, 60 NOTRE DAME L. REV. 431 (1985).'9 See M.-D. JACOUBOVITCH & C. MOORE, SUMMARY JURY TRIALS IN THE NORTHERN Dis-

TRICT OF OHIO (Federal Judicial Center 1982); A Compendium of Judicial ADR, ALTERNA-TIVES TO THE HIGH COST OF LITIGATION, Special Issue 1985, at 6 [hereinafter cited asCompendium].

50 E.g., W.D. MICH. Cmv. R. 44.'51 The districts in which judges have used the summary jury trials include Colorado,

Connecticut, Florida (S.D.), Illinois (N.D.), Massachusetts, Michigan (E.D), Montana, Ohio(S.D.), Oklahoma (W.D.), and Pennsylvania (M.D. and E.D.). Compendium, supra note 49,at 7; Ranii, Summary Jury Trials Gain Favor, Nat'l L.J., June 10, 1985, at 1, 30.

52 "Resolved, that the Judicial Conference endorses the experimental use of summaryjury trials as a potentially effective means of promoting the fair and equitable settlement ofpotentially lengthy civil jury cases." Report of the Proceedings of the Judicial Conference ofthe United States, Washington, D.C., Sept. 19-20, 1984, at 88; see also Compendium, supranote 49, at 4, col. 3.

11 Even where participation in the summary jury trial process is mandatory when thejudge deems the process appropriate, as in the Northern District of Ohio, the process may

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ADR in court: developing procedures permitted under existingrules in order to incorporate the trust between the adversaries thatis the central feature of all ADR devices. This approach, alreadyused by judges in many contexts, calls essentially for involving theparties themselves in the litigation, not merely as witnesses but asactive participants with the lawyers.

Thus, to take the simplest example, a judge could require ex-ecutives of disputing corporations to appear in chambers with thelawyers at a pretrial conference under rule 16 .5 As already noted,55

the judge at the pretrial conference can often expedite a case byinsuring that the litigants themselves understand exactly whattheir lawyers are doing. 6

V. THE FUTURE OF ADR

The best use for ADR may be to resolve the types of casesthat are extremely difficult or exceedingly costly to resolve incourt. ADR is now being used to resolve multi-party cases.57 Thisrange of actions is perhaps typified by the more than 30,000 asbes-tos-related personal injury cases flooding courtrooms across thecountry.58 But even ordinary commercial and antitrust cases inwhich many defendants are sued in the same action can be ren-

nonetheless be seen as consensual because the summary jury verdict is not binding." And see especially, FED. R. Civ. P. 16(c)(7), permitting the parties to "consider and

take action with respect to ... the possiblity of settlement or the use of extrajudicial proce-dures to resolve the dispute."

See supra note 26 and accompanying text.86 "In one case, the parties were about to embark on a series of depositions to establish

whether one of the companies was doing business in Illinois under the long-arm statute.There had been considerable wrangling by the attorneys before the conference, and theywent at it heatedly in front of [U.S. District] Judge [John F.] Grady [N.D. Illinois]. As ithappened, the judge had asked that the two chief executive officers be present; they listenedto the debate more and more incredulously, until one finally blurted out: 'There isn't anyquestion that we do business in Illinois.' Potential months of discovery was thus elimi-nated." See CEOs, supra note 26 at 5.

17 It has become increasingly apparent that the conventional tools of litigation are in-adequate to resolve these kinds of disputes. The most compelling illustration is the specta-cle of an asbestos proceeding housed in a converted auditorium, in which the judge feltcompelled to install traffic signals on his desk to indicate which of the more than 100 law-yers wished to object to the admission of evidence. Galante, Megatrials, Nat'l L.J., March25, 1985, at 1, 36.

" DEBORAH HENSLER, ASBESTOS IN THE CouRTs: THE CHALLENGE OF MASS Toxic TORTS24 (1985). For other types of multi-party cases, see, for example, MORTON MINTZ, AT ANYCOST: CORPORATE GREED, WOMEN, AND THE DALKON SHMLD 175-246 (1985); Levine, Gildingthe Lilly, A DES Update, TIAL, Dec. 1984, at 18; A.H. Robins Files Chapter 11, CitesDalkon Litigation, L.A. Daily L.J., Aug. 22, 1985, at 1.

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dered more manageable by the use of ADR techniques.5 9

Attempting to fit a many-sided dispute into the two-sided con-tour of the adversary system can be worse than jamming the pro-verbial square peg into the round hole. More flexible processes areoften necessary to bring matters to a successful and equitable reso-lution. In the asbestos litigation, mediation has tentatively proveditself by bringing together more than thirty producers and insurersin a pact, mediated by former Yale Law School Dean Harry H.Wellington, to submit claims for rapid payout to the so-called As-bestos Claims Facility. Although the Facility will not automaticallyhonor any claim presented, use of the Facility is expected to befaster than litigation, and should radically simplify the proof re-quired of plaintiffs. The mediation took two years-far shorterthan the time most asbestos cases have taken to get to trial.6 0

In the end, however, we have only begun to identify the kindsof disputes likely to be amenable to the techniques of ADR. Dis-putes arise for various reasons-greed, envy, anger, revenge, princi-ple-and can be settled (or not) for various reasons. Disputes canhave very different legal characteristics. Likewise, the relationshipbetween the parties varies from dispute to dispute: parties with ahistoric and continuing relationship will presumably have a differ-ent reaction to a dispute and its potential settlement than partieswho have met on just this one occasion and will never meet again.How these axes of difference relate is an important and unresolvedquestion.

We therefore need a typology of disputes to help determinewhich kinds of cases are amenable to ADR and which should beleft to the traditional devices of adjudication. Among the relevantfactors are: the number, nature, and relationships among the par-ties; the relief sought; the nature of the claim; the nature and stan-dard of proof; the cost of formal adjudication (including potentialdelays); and the financial strength and risk aversion of the parties(including the degree of plaintiff's urgency for relief and thestrength of defendant's desire to delay judgment). A matrix ofthese factors will no doubt be complex, and we must resist the

"' See Alternative Dispute Resolution Techniques, 53 ANTITRusT L.J. 271 (1984); War-shauer, Litigation Management Techniques, ALTERNATVES TO THE HIGH COST OF LITIGA-TION, Nov. 1984, at 7.

1o There are no published statistics on how long asbestos cases take to get to trial. Aneducated guess by Professor Eric D. Green, a special master in the consolidated asbestosproceedings in the U.S. District Court for the Northern District of Ohio, is that they rangefrom eighteen months to eleven years. Conversation with Eric Green, Center for Public Re-sources, March 1986.

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temptation to think that mathematical formulas will reveal withany precision which process is most appropriate for a particularkind of case. But without some deeper understanding of the crucialdifferences among types of disputes, we will never be able to weighthe competing claims of justice and efficiency, and to design theprocesses that will best serve both.

lessons from the alternative dispute resolution movement

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